(RabbiKaganoff.com)
Question #1: Very fresh produce
Mrs. Goodneighbor asks: “My gentile neighbor occasionally drops off fresh produce that she picks from her garden. If she brings us some on Yom Tov, may we use it, either on Yom Tov or Shabbos?”
Question #2: Forgotten eruv tavshillin
Mr. Forgetful inquires: “If I forgot to make an eruv tavshillin on erev Yom Tov, may I make it on the first day ofYom Tov?”
Introduction:
With the seventh day of Pesach falling on Friday, both of these questions are relevant. We need to understand first the halachos of food that became edible on Yom Tov because of melachah, prohibited work, performed by a gentile. This issue is discussed in a passage of Gemara (Beitzah 24b), where it says that fresh produce or fish brought by a gentile to a Jew on Yom Tov is muktzah. This means that one should assume that it was picked or caught on Yom Tov, unless one is certain that it had been harvested earlier.
The Gemara rules that not only is the produce or fish forbidden on Yom Tov, but it may not be used until enough time has elapsed after Yom Tov that the harvesting and transporting of the product could have been performed (Shulchan Aruch, Orach Chayim 515:1, based on the position of Tosafos, Beitzah 24b, at end). This amount of time is called kedei she’yaasu, literally, enough time for this work to be done.
One out of two
What is the law when the produce was received on the first day of a two day Yom Tov? May the produce be used on the second day of Yom Tov (after kedei she’yaasu has transpired), or only after kedei she’yaasu has passed following the second day of Yom Tov?
This question is raised already by Rashi (Beitzah 24b), who notes that, in his hometown, produce harvested on the first day was used on the second day of Yom Tov after kedei she’yaasu. (As we will soon see, this particular leniency applies on the two days of Yom Tov that occur only in chutz la’aretz, but not on Rosh Hashanah. It also does not apply when the first day of Yom Tov falls on Friday.) Why was this so? Let me explain.
In the Jewish calendar, all months are either 29 or 30 days long, since the moon revolves around the earth in a bit more than 29½ days. The decision as to whether a month was 29 or 30 days long was made, initially, by a special beis din appointed by the head of the Sanhedrin. This determination was based on scientific information together with the testimony of witnesses, who saw the new moon.
Torch express
The night after this beis din made its determination, Jewish settlements as far away as Bavel (in contemporary Iraq) were notified that the previous day had been declared Rosh Chodesh, via a system of torches waved on hilltops (Mishnah, Rosh Hashanah 22b). This system worked extremely efficiently until a deviant sect, theBaitusim, decided to wave torches, even when the beis din had not declared the previous day to be Rosh Chodesh. These nasty false alarms created confusion regarding which day had been declared Rosh Chodesh, and, therefore, which day should be celebrated as Yom Tov. As a result, the torch system was discontinued and a new system was introduced whereby messengers were sent to notify the distant communities, which obviously took longer (Mishnah, Rosh Hashanah 18a, 21b).
During what we will call “the era of the runners,” not all communities received the information early enough to know which day was Yom Tov, and so they were required to observe two days of Yom Tov. This practice came to be called Yom Tov sheini shel galuyos, the second day of Yom Tov observed in the Exile.
Will the real Yom Tov stand up?
Every community that adhered to two days of Yom Tov knew that this observance was kept only because of the doubt. For this reason, certain leniences were allowed — for example, if someone forgot to make an eruv tavshillin on Wednesday, when Yom Tov fell on Thursday and Friday. In this situation, someone could have made an eruv tavshillin on Thursday, the first day of Yom Tov, by declaring the following: If today is the realYom Tov, then tomorrow is a weekday and cooking for Shabbos is permitted without an eruv tavshillin. Iftomorrow is Yom Tov and not today, I can make the eruv tavshillin today.
New calendar
Later in history, when it was no longer possible to establish Rosh Chodesh on the basis of testimony, Hillel Hanasi* (a great-grandson of Rabbi Yehudah Hanasi and a distant descendant of Hillel the Elder), established the calendar that we currently use. Among the changes that he incorporated is that the length of most months is standardized and does not vary from one year to the next. Once this calendar came into use, those in the exile knew exactly which day was observed as Yom Tov in Eretz Yisroel, thus raising the question whether observing two days of Yom Tov could be discontinued. Chazal ruled that those in chutz la’aretz should continue observing two days of Yom Tov, since this would help prevent errors at times when people do not have access to information about the calendar (Beitzah 4b).
Since the origin of Yom Tov sheini shel galuyos was because of the uncertainty as to which day was indeed Yom Tov, this practice continued to follow the rules under which the custom had been originally established. As a result, someone who forgot to make an eruv tavshillin on Wednesday, erev Yom Tov, may make it on Thursday, the first day of Yom Tov sheini shel galuyos, in the manner explained above.
Fresh produce on two days
We are now better equipped to discuss the question raised by Rashi: If a gentile delivered fresh fish or produce on the first day of Yom Tov of the Exile, may one use it on the second day? During the era of the runners, those in the exile could reason as follows: If the Yom Tov declared by beis din is on the first day, then one is permitted to pick fruit or to fish on the second day, and one may certainly use on the second day what was harvested by a gentile the day before. On the other hand, if the second day is the day declared by beis din to be Yom Tov, then one would have been permitted to harvest the fruit or fish on the first day, and no melachah activity was performed. Either way, something harvested on the first day of Yom Tov should be permitted for use on the second day. Therefore, Rashi held that fresh fish or produce brought by a gentile on the first day of Yom Tovmay be used on the second day, provided one waited kedei she’yaasu.
Rashi notes that he subsequently heard that his rebbe, Rabbi Yitzchak Halevi, prohibited the fruit until both days of Yom Tov are over and then kedei she’yaasu, a position also held by the Baal Halachos Gedolos. Rashiattempted, unsuccessfully, to convince his rebbe otherwise, although he reports that he subsequently found sources that both Rabbeinu Gershom and Rabbi Kelonimos of Rome held as he did, and he therefore ruled according to them and against his rebbe. On the other hand, Tosafos (Beitzah 24b s.v. Vela’erev) concludes in agreement with Rabbi Yitzchak Halevi that the produce or fish may not be used until kedei she’yaasu after the end of the second day of Yom Tov.
What is the basis of this dispute?
The underlying basis of the dispute between Rashi and Tosafos is why must one wait until kedei she’yaasubefore one may use fish or produce harvested by a gentile on Yom Tov. Rashi explains that the reason is so that one does not benefit from a melachah performed on Yom Tov, even when done by a gentile. Waiting until kedei she’yaasu means that one does not gain from the gentile’s actions.
However, Tosafos contends that the reason to require kedei she’yaasu is to ensure that a Jew not ask a gentile to do melachah on Yom Tov. Banning benefit from work performed by a gentile until kedei she’yaasu after Yom Tov accomplishes that a Jew gains nothing from asking a gentile to work on Yom Tov; thus, one would not be tempted to ask him.
According to Tosafos, produce or fish harvested by a gentile on the first day of Yom Tov will be prohibited untilkedei she’yaasu after both days of Yom Tov are over, in order to avoid someone asking a gentile on the first day of Yom Tov to do something that the Jew wants to use on the second day. According to Rashi, fresh produce or fish harvested on the first day of Yom Tov is permitted on the second day after kedei she’yaasu because no benefit is gained from work performed on Yom Tov.
Exceptions
What is the law if a gentile harvests fish or produce on the first day of Yom Tov for his own use or for that of another gentile? May a Jew use the produce on the second day of Yom Tov, after the time of kedei she’yaasu has passed — since the gentile did not perform the melachah for a Jew; perhaps the takkanah banning the produce is not pertinent?
Tosafos records a dispute concerning this situation. Some even extend this heter further: If the gentile brought produce on the first day of Yom Tov to one Jew, could a different Jew, who may not even know the gentile, use the produce on the second day of Yom Tov? Perhaps the produce is forbidden only for the person who received it directly from the gentile, since this Jew may be tempted in the future to prearrange delivery of fresh produce onYom Tov. The Terumas Hadeshen (#78) concludes that one may rely on this reason in an extenuating situation.
How do we rule?
Having analyzed the dispute between Rashi and his rebbe as to whether fresh produce or fish harvested on the first day of Yom Tov is permitted on the second day, our next question is: How do we rule?
The Shulchan Aruch (Orach Chayim 515:1) rules leniently. The Rema, however, follows the approach of theTerumas Hadeshen (#78), who concludes that one should rule stringently, unless there are other reasons to be lenient. He rules that if one has invited honored guests and needs the fresh produce received on the first day ofYom Tov to prepare an appropriate meal on the second day, he may use it. This is because the the guests, who are the beneficiaries, do not know the gentile who brought the produce, and the halachah might be that the produce is permitted for them.
Some Ashkenazic authorities (Taz) conclude that when one is short on food, one may rely on Rashi, even without the special heter that the recipients do not know the gentile suppliers of the food. However, few laterAshkenazic authorities accept this ruling (Shaar Hatziyun 515:16). The Shaar Hatziyun concludes that when one has another reason to be lenient, such as, we are not absolutely certain that the produce was picked on Yom Tovor it is unclear that it was harvested with the intention of supplying it to a Jew, one may permit the produce.
Fresh sushi on Shabbos
Tosafos quotes a dispute between different baalei Tosafos as to whether those who prohibit using the produce on the second day of Yom Tov permit it on the Shabbos following two days of Yom Tov. In other words, if a gentile brings fresh produce on the first day of Yom Tov which is a Thursday, may one eat the raw produce on Shabbos?
(For a practical reason, according to these opinions, it can be eaten only raw on Shabbos, since it would bemuktzah on Friday and one is not allowed to cook it then.)
Although Tosafos concludes that it is prohibited, the Terumas Hadeshen permits fresh produce picked by a gentile on Thurday, the first day of Yom Tov, to be eaten on the coming Shabbos. Therefore, if a gentile brought fresh fish harvested on the first day of Yom Tov, one would be permitted to serve it as sushi on Shabbos.
At this point, we can address the following question: “My gentile neighbor occasionally drops off fresh produce that she picks from her garden. If she brings us some on Yom Tov, may we use it?” The answer is that it certainly may not be used on the day it was picked. According to the conclusion of the Shulchan Aruch, it may be used on the second day after kedei she’yaasui has transpired, whereas, according to the Rema, if the second day is Yom Tov, it may be used only when there are other mitigating circumstances, as mentioned above. If the produce can be eaten raw, one may consume it on Shabbos after the two days of Yom Tov, according to the conclusion of theTerumas Hadeshen.
Not on Rosh Hashanah!
According to what we have explained thus far, under some circumstances, one may prepare on the second day of Yom Tov fresh produce or fish received from a gentile the day before. However, although this halachah is true in chutz la’aretz, it will not hold true on Rosh Hashanah. Understanding the reason for this distinction requires that we analyze the difference between the two days of Rosh Hashanah and Yom Tov sheini shel galuyos.
Observing two days of Rosh Hashanah began as follows. As we learned above, originally declaring a month to be 29 days long was dependent on the appearance of witnesses in the beis din on the 30th day. It once happened on Rosh Hashanah that the witnesses appeared very late in the day, after the time for the bringing of the korban mincha in the Beis Hamikdash. This delay created the following problem: The levi’im used to sing psalms of praise to Hashem while the wine was poured to accompany the two regular daily korbanos that were offered in the morning [shacharis] and in the afternoon [mincha] (Arachin 12a). Each day of the week had a psalm sung, and on Shabbos, Rosh Chodesh and the festivals, a different chapter was sung, which alluded to the special day. On Rosh Chodesh and Rosh Hashanah, this special shirah was sung only during the mincha offering, since the witnesses often did not arrive early enough for the levi’im to sing the special psalm at shacharis.
On this particular Rosh Hashanah, no witnesses to the new moon had arrived by mid-afternoon of the 30th day. In the interim, no one was permitted to do any work prohibited on Yom Tov, since the assumption was that this day would be declared Rosh Chodesh and Rosh Hashanah.
The time arrived to offer the korban mincha, and still no witnesses. The mincha was offered, which now required the levi’im to sing the shirah. Since no witnesses had as yet arrived, the day had not yet been declaredRosh Chodesh, and the levi’im had no choice but to sing the weekday psalm, not the one designated for Rosh Hashanah. Finally, very late in the afternoon, witnesses arrived, and beis din declared the day as Rosh Hashanah. But this meant that the wrong shirah had accompanied the afternoon mincha offering!
To avoid this happening in the future, Rabbi Yochanan ben Zakai, the Nasi of the Sanhedrin, declared that, should witnesses not arrive by mincha time in any future year, the beis din would not accept any testimony about the new moon. This would postpone Rosh Hashanah until the next day, and the special psalm for Rosh Hashanah would be sung the next day. However, included in this takkanah was that, should the witnesses not arrive by mincha, both days need to be observed as Rosh Hashanah. Thus, the establishment of two days ofRosh Hashanah was not because there was any doubt which day was Yom Tov, but because of a decree that, under these circumstances, both days must be treated as Yom Tov. Therefore, one cannot make an eruv tavshillinon the first day of Rosh Hashanah by declaring the condition mentioned above: “If the first is day is Yom Tov, I do not need an eruv tavshillin to cook on Friday for Shabbos…” because this statement is not accurate. Indeed,Chazal had made a takkanah in which both days have sanctity as Rosh Hashanah! Thus, if a gentile neighbordrops off fresh produce or fish on the first day of Rosh Hashanah, according to all opinions it cannot be used on either day of Yom Tov or on the Shabbos following.
Conclusion
The Torah refers to the Yomim Tovim as moed. Just as the word ohel moed refers to a meeting place betweenHashem and the Jewish people, so too a moed is a meeting time between Hashem and the Jewish people (Hirsch, Vayikra 23:3 and Horeb). Although on Shabbos we are to refrain from all melachah activity, on Yom Tov the Torah permitted melachah activity that enhances the celebration of the Yom Tov as a moed. Permitting the preparations of delicious, freshly prepared meals allows an even greater celebration of the festivities of theYom Tov, as we celebrate our unique relationship with Hashem. Perhaps being more distant from Hashem inchutz la’aretz necessitates an extra day to celebrate our unique relationship with Him!
*Historians call him Hillel the Second, or sometimes Hillel Nesiah but these terms are never used in traditional sources, where he is always called Hillel Hanasi.
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